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Legal Blotter, Part I: Team Trump
As promised, the 1/6 Committee has voted to pursue criminal contempt of Congress charges against Steve Bannon. The full House is expected to vote on the matter tomorrow and then it will be up to AG Merrick Garland and the Department of Justice to decide what to do.
There is a wide range of possibilities of what will happen when that point arrives. On one end of the spectrum, Merrick Garland could decide that congressional subpoenas simply must have teeth, and then could channel his inner Javert and go after Bannon with all he's got. At the other end of the spectrum, Garland could punt, and tell the Committee to take the matter to the federal courts. Actually, there's an even slower possibility than that. Since Bannon's defiance is based on a claim of executive privilege, the U.S. Attorney for Washington, D.C. could declare that Bannon is free to ignore the committee until the executive privilege lawsuit filed by Donald Trump is resolved. In that scenario, Bannon could be booking his airplane tickets to Dulles right around the start of the next Ice Age.
Needless to say, the 1/6 Committee doesn't have years (or eons) to wait. However, in the opinion of legal scholar Jonathan Shaub, they have options. He's a lawyer, so it takes him 3,000+ words to say it, but what it boils down to is that he thinks that if it becomes necessary, the Committee could issue a new subpoena that spells out very clearly what they want to talk about. Since they know full well what is, and is not, potentially covered by privilege, they could make certain to list only things that are not. Bannon would probably still try to make the same argument, but Shaub thinks it would make it nearly impossible for Merrick Garland to take a pass on the matter.
Meanwhile, as long as we're sharing legal scholars' opinions on Trump-related claims of executive privilege, University of Chicago law prof Aziz Huq has a piece written for Politico in which he examines the lawsuit the former president filed on Monday. We're not lawyers, but we thought it was a ridiculous filing whose only purpose is to buy time. Huq actually is a lawyer, and he agrees entirely.
That said, as with Shaub and Bannon, Huq thinks the 1/6 Committee has options when it comes to Trump. Actually, he sees two options. The first is that the Committee could use the tools available to hasten the legal process, like going to the Supreme Court and asking for expedited resolution of the Trump case. Given the stakes, and the obvious time pressure, this is—ironically enough—exactly what the midnight docket was designed for.
Alternatively, the Committee could have a chat with Joe Biden and ask for his assistance. Inasmuch as privilege only applies to classified materials, and Biden has broad authority to decide what is and what is not classified, the President could just declassify the documents the Committee wants. Or, if he wants to take a more conservative approach, he can ask his aides to read the documents that the Committee wants to know about, and then answer whatever questions are asked.
The upshot is that the game of legal chess has begun. The good news, for those who would like to see some sort of actual resolution here, is that the Democrats appear to be playing with knights and bishops, while Team Trump is playing with horsies and those pointy-headed things. (Z)
Legal Blotter, Part II: Crooked Congressmen
As long as we've got the legal blotter out, there's been some recent news involving the criminal activities of two members of the House. First up is Rep. Jeff Fortenberry (R-NE). Yesterday morning, the Representative sent an e-mail to supporters telling them that he thought he might be indicted sometime very soon, and asking them to donate money to his campaign. That turned out to be quite the bold prediction, since he was indeed indicted about two hours later. He must have had insider information.
Fortenberry is facing one count of scheming to falsify and conceal material facts and two counts of making false statements to federal investigators. The charges all stem from campaign contributions made by Nigerian-born billionaire Gilbert Chagoury. Since Chagoury is not an American citizen, that's not legal, and so the contributions were laundered through several intermediaries in California. Fortenberry says he returned the money when he found out and did everything possible to rectify the "error," and that he's just the victim of a malicious prosecutor in California who cooked up "a bogus charge manufactured to take [Fortenberry] out." The feds disagree. Readers can judge for themselves how plausible it is that there is a U.S. Attorney in California who has it in for congressmen from Nebraska.
Fortenberry clearly knew this was coming for a long time, as the video he posted, in which he defends himself, shows corn in the background. And that corn is of the color and height that would be typical of summer, not October. Anyhow, in the short term, he's going to lose his committee assignments, per House rules. As to next year, his district (NE-01) is R+11. That's close enough that if he tries to run for reelection, and he's still got a scandal hanging over his head, he could be vulnerable. At the very least, he's going to draw a strong Democratic challenger. Well, if the Party can find one, that is; the Democratic bench in Nebraska isn't what you would call deep.
Moving on, there's Rep. Matt Gaetz (R-FL). Like Fortenberry, he has also had the sword of Damocles hanging over his head for an extended period. At the moment, he's no closer to the hoosegow (or to an indictment) than he was last week. However, his former "wingman" Joel Greenberg, who has turned state's evidence, was in court again on Monday.
The reason for the appearance was for Greenberg and prosecutors to ask for yet another delay in sentencing, which was granted, though the judge wasn't happy about it. Apparently, the stool pigeon is still singing, and the prosecution wants to follow up every possible lead before Greenberg commences his little vacation at Club Fed. Maybe none of this has to do with Gaetz. But maybe it does. Or, failing that, Greenberg might be handing over people who will, in turn, be willing to join him in flipping on the Congressman.
In case you are wondering, Gaetz' district is FL-01, which is R+20. In contrast to Fortenberry's situation, it's hard to concoct a scenario where a Democrat can win that seat. On the other hand, a Republican who is just as Trumpy as Gaetz, but is not an accused sex offender, could be a problem for him. He's already got three primary challengers—a Marine Corps veteran, an Air Force veteran, and a Navy veteran. All that's needed is an Army vet, and maybe someone from the Coast Guard, and the set will be complete (we assume the Space Force is too new to have veterans). Time will tell if any of these three fellows gain traction, or if a more serious candidate jumps in. The Republican bench is actually pretty deep in that district. (Z)
Trump Slurs Powell
After the Monday morning announcement of Colin Powell's death, some people and outlets were laudatory. Others, including us, tried to offer an assessment of the man and his career, both the good and the bad. Donald Trump, of course, is utterly lacking in class, and cannot let a grudge go, even when it's against the recently deceased. The former president said snotty things after the death of John McCain, who had dared to be critical. And, true to form, Trump also said snotty things after the death of Powell, who had also dared to be critical.
Here are Trump's exact words, relayed by one of the statements he releases on a regular basis:
Wonderful to see Colin Powell, who made big mistakes on Iraq and famously, so-called weapons of mass destruction, be treated in death so beautifully by the Fake News Media. Hope that happens to me someday. He was a classic RINO, if even that, always being the first to attack other Republicans. He made plenty of mistakes, but anyway, may he rest in peace!
Hey, if you end on a positive note, that's all that matters, right?
Trump saying snotty things was barely of interest while he was president, and it's of even less interest now. We pass it along, however, for two reasons. First, as Politico's Jack Shafer observes, Trump used to be able to lob all manner of slings and grenades, big and small, when he had a Twitter account. Now that he's been booted from the platform, his only option is to drop nuclear bombs via released statements, and hope that they are repeated in news stories about "what Trump said today." One problem with this is that it's a tough way to get attention, since Trump has to keep topping himself. Another problem is that it's definitely not going to help persuade social media companies to restore his access.
The second reason we pass this along is the minor, but very interesting question that occurred to us when we read Trump's words: What on earth are they going to do, security-wise, when he finally does shuffle off this mortal coil and is six feet under? There are millions of people who would love a shot at literally pissing on his grave, or otherwise defacing it, and who presumably wouldn't be shy about doing it. Will there have to be a 24-hour guard? Bars around the site, as with James Monroe's grave? Some sort of indoor tomb/sarcophagus? Usually, the need for strict security ends with a former president's demise, but that's not going to be true in this case. Heck, his star on the Hollywood Walk of Fame has been pooped on by dogs, vandalized countless times, and damaged to the point of requiring replacement at least three times. And that's just a cheesy tourist attraction. (Z)
A Critique of Democratic Messaging
This past weekend, we answered a question about the Democrats' messaging, and wondered if the Party is doing as badly as the pundits say they are. This upcoming weekend, we'll be sharing some thoughts on the subject from readers. For now, however, there is this interesting op-ed written for Politico by Farah Stockman, who is a member of The New York Times' editorial board, and the author of the upcoming American Made: What Happens to People When Work Disappears.
In working on the book, Stockman acquainted herself with a number of blue-collar Midwesterners and tracked the progress of their personal and professional lives over several years. The basic argument of the op-ed is that Joe Biden may come from blue-collar roots, but he and his party need to do a better job of speaking the language of blue-collar Americans. These folks want to be working, and derive a lot more from their jobs than just a paycheck. So, they don't particularly want to hear about a stronger "social safety net," which they would only utilize grudgingly (and some wouldn't use it at all, regardless of the circumstances). What they want to hear about is jobs—more jobs and better-paying jobs, ideally to replace those that have been shipped overseas or have been eliminated by automation.
The same basic issue exists when it comes to higher education. The individuals Stockman has been talking to are largely suspicious of colleges and universities, seeing them as a place where elites protect and propagate their elite status at the expense of the working man and woman. The blue-collar types don't want to hear about free college or student loan forgiveness. To the extent that they want to hear anything education-related, it's about vocational training (or retraining, in the case of those whose skills are no longer wanted by the marketplace).
Stockman also offers an excellent distillation of the appeal of the Trump political agenda:
Working-class Americans rebelled against globalization and elected Donald Trump, who promised to fix it by bringing the factories back, slapping tariffs on Chinese goods, kicking out undocumented immigrants who are working for low pay and getting rid of pesky regulations that make it more expensive to run a factory in the United States. He didn't fix it, of course. But he is beloved by tens of millions of blue-collar voters for trying.
That certainly puts it more clearly and more succinctly than Trump himself ever could.
Anyhow, it's a good piece, and Stockman clearly speaks from experience, so it's worth reading the whole thing. That said, we also think she's making things just a little too pat. She almost entirely ignores the salience of culture-wars issues, dog-whistles, authoritarianism and other very problematic aspects of Trump's appeals that Democrats cannot and will not mimic. Further, what she is advocating is dangerously close to pandering. Blue-collar people can't lead the lives their parents did, college is not a bad/evil thing, and for the party to embrace the rhetoric she suggests would potentially be dishonest, or would be offensive to other parts of the Democrats' base, whose votes are also important. That is not to say there aren't useful things here for Democratic pooh-bahs to consider, merely that we remain leery of op-eds that make it seem like winning these voters back would be so simple and so easy if Democratic politicians would just wake up and smell the coffee. (Z)
Cassidy Calls for Senility Test
No, we're not saying he needs one. We're saying he's advocating for one. Specifically, sitting for an interview with Axios on HBO, Sen. Bill Cassidy (R-LA) decreed that he favors administering cognitive tests for aging officeholders in all three branches of government. Pointing out that he has an M.D., Cassidy observed that many people decline precipitously in their 80s, and that his chamber has had, in the past, members on both sides of the aisle who "at the end of their Senate terms were senile."
Cassidy insisted that he wasn't thinking of any person in particular, but we find it hard to believe that the notion just spontaneously popped into his head. Was this a backdoor attack on 78-year-old Joe Biden, or 81-year-old Speaker Nancy Pelosi (D-CA)? Possible. Alternatively, was it a bit of shade in the direction of 75-year-old Donald Trump, who, if reelected, would be 78 on Inauguration Day? Also possible. Cassidy did have some other pointed remarks about the former president, remarking that "Trump is the first president, on the Republican side at least, to lose the House, the Senate and the presidency in four years. Elections are about winning," and also predicting that the 2024 nomination would not necessarily be Trump's for the taking.
Anyhow, in theory, Cassidy's suggestion may seem like a good idea. In practice, though, it kinda stinks, and it's hard to imagine that the Senator was serious. First of all, such a test would be creating a new qualification for officeholding, and so would require a constitutional amendment. There is zero chance of that happening.
And even if we are wrong, and it somehow did happen, there would be no good way to design a workable system. How do you write an amendment that accounts for future changes in the medical profession and/or the practice of medicine? Further, whether the decision was placed in the hands of one physician, or a trio, or a panel, it's just too much power in too few hands. Is there any doubt that the Republican Party would try to get people like Rep./Dr. Ronny Jackson (R-TX) chosen? And if they can't do that, and the physicians are honest and nonpartisan, they would be loath to exercise their power. It's just too much burden on their shoulders to end a presidency, or the service of some other holder of high office. Recall that the Twenty-fifth Amendment has procedures for trying to remove an unfit president and they've proven completely unworkable because the people who would have to invoke it—the veep and the cabinet—were all selected by the president and not about to stick their necks out.
The only plausible option is to establish a mandatory retirement age for federal office, wherein someone cannot be elected to a new term after some pre-set age, like 75 or 80. That's not going to happen either, but at least it would be an objective standard not subject to manipulation or lack of will. (Z)
Halloween Comes Early
Halloween is in about a week and half, but it would seem the prize for scariest costume of the year is already in the bag. We give you Rudy Lincoln:
#mcauliffeisbad just listen to Abe pic.twitter.com/tQbS9EVJ3Q
— Rudy W. Giuliani (@RudyGiuliani) October 19, 2021
America's Former Mayor couldn't be bothered to be properly made up and costumed, so he's using an OK-but-not-great filter to achieve the Lincoln look. As to the accent that Giuliani is using, he seems to be under the impression that Lincoln was from southern England, as opposed to the southern United States. Of course, this is not the first time Giuliani has struggled to put together a decent impersonation of a lawyer.
The ad is making reference to Virginia gubernatorial candidate Terry McAuliffe's political partnership with the Clintons; during the Clinton presidency the alleged "selling" of the Lincoln Bedroom to donors, which McAuliffe suggested in a memo, was a mini-scandal. Never mind that every president of the last half century, excepting Barack Obama, used that perk to reward supporters. That would include Donald Trump, of course.
And speaking of Donald Trump, one wonders how this ad is meant to help the campaign of Republican Glenn Youngkin. At the moment, Youngkin is ostensibly trying to distance himself a bit from the insurrectionists (and from Trump), thanks to the situation last week where people at a pro-Youngkin rally pledged allegiance to a flag carried during the insurrection. An ad from Giuliani, who was among the people to exhort the crowd on 1/6, is not exactly going to help with the "distance" thing. On the other hand, if the goal is to hug Trump supporters closer, well, Rudy is on the outs with his former boss right now. So, the ad doesn't seem to work on that level, either.
As long as we're on the subject, polls of the race continue to give McAuliffe a lead of 3-4 points. It's clear that Youngkin voters are, on the whole, more enthusiastic, as he does better among likely voters than he does among registered voters. On the other hand, the polls of the California recall did not do so well in accounting for the fact that voting-by-mail requires less "enthusiasm" than actually getting yourself to a polling place.
And in case you are wondering, with two weeks until Election Day, Virginians have already cast 160,179 mail-in ballots, in addition to 284,511 in-person ballots. Virginia has a little less than 6 million registered voters, and there were about 2.5 million votes cast in the last gubernatorial election, so while the voting so far likely gives McAuliffe an edge (since Democrats are more likely to vote early, and to vote by mail), it's surely not a decisive edge. (Z)
Stewart Slams Media for Pot-Stirring
We have noted many times, including as recently as this weekend, that the political biases of the media get all the attention, but that there are other biases that are more pronounced, and arguably more damaging. And very high on the list is the propensity to highlight, and tacitly encourage, conflict, even over silly things.
It turns out that Jon Stewart, of The Daily Show fame, is on the same exact wavelength. He famously took Tucker Carlson to task 15 years ago, and it would seem that Stewart hasn't lost his edge. Making an appearance on Jake Tapper's CNN show "State of the Union," the comedian took no prisoners, lambasting the channel for its propensity to stir up controversy. The money quote:
I think the media does a terrible job at de-escalation. And de-escalation is the antidote to all this nonsense. And I don't mean civility, and I don't mean nonpartisanship. I mean focusing on things that are more urgent and elemental in people's lives, and really hammering away at those things, rather than the emotional fault lines that occur in societies.
Tapper seemed to agree, though don't hold your breath waiting for him or anyone else on any of the news channels to change their approach.
We don't point this out to note that Stewart agrees with us (though that doesn't hurt). We point it out because it gives us a chance to note that Stewart has a new show on Apple+ called The Problem. Whereas The Daily Show combined comedy with incisive commentary, The Problem pretty much ditches the comedy and just focuses on the commentary.
To the extent that there is a counterpoint to media figures like Carlson and Sean Hannity, it's not equally-over-the-top leftists (excepting, possibly, Rachel Maddow). No, it's commentators like Stewart, who attract an audience by being entertaining and smart. When he hosted "The Daily Show," he had as much impact on the nation's political dialog as any Fox personality. Maybe more. If he can recapture some portion of that influence with his new show, it could be a very good thing when it comes to pushing back at some of the worst stuff coming out of Fox. It won't be easy when broadcasting only once a week, and from a platform people have to pay extra for (The Daily Show was on basic cable). But Stewart's former Daily Show correspondent John Oliver managed to do pretty well under the same circumstances with his HBO show Last Week Tonight. And if there's anyone who can make his presence felt, it's Jon Stewart. (Z)
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